Jordan v. Roney , 23 Ala. 758 ( 1853 )

GOLDTHWAITE, J.

One of the terms of the agreement offered in evidence is, that the plaintiff was to board the negro during the time he was engaged in effecting a cure, and this formed a part of the consideration, on which the promise of the defendant was based. The declaration, however, set up the curing of the negro as the only consideration for the promise, and in that respect varied from the agreement offered. The consideration being entire, it was necessary to prove one that was identical with that alleged in the pleadings.

The court, therefore, erred in allowing the agreement offered to go the jury under the declaration as framed.

There was no error in admitting tho declaration oí the plaintiff at the time lie returned the boy, “that ho was cured,” although that declaration would be no evidence of the fact; it was simply evidence to show, that under the agreement the plaintiff had'returned the boy as well of the disease which ho had undertaken to cure, the defendant having stipulated to pay the sum agreed on, six months after such return, if the boy was in fact cured. The return of the boy by the plaintiff, coupled with the declaration then made by him, wrould indicate the point of time from which the six months was to commence running, and thus fix the period when the defendant became bound to pay the money.

The charge of the court was clearly erroneous. The legal effect of the agreement, so far as the defendant was concerned, was, that he should pay the sum stipulated six months after a perfect cure was effected, or from the date when the boy was returned as well, if a cure had been effected when so returned., — ■ The only issue of fact presented upon tho evidence was, whether the boy was cured at the time of his return in September, 1851, and any testimony which conduced to show that such was not the case was admissible. The court construed the time specified in the agreement for the payment of the money as having been fixed by the parties, for the purpose of ascertaining whether the cure had been effected, and this may have been one object of the defendant in postponing the day of payment for six months ; but the agreement is express, that if a perfect cure was not effected the defendant was to pay nothing. The record shows that evidence was offered, showing the appearances of the leg more than six months after the boy was returned as well, and, as we understand the bill of exceptions, other testimony was also offered tending to show that from such appearances the boy was not in fact cured at that time. This evidence, as we have seen, was admissible, and as the effect of the charge given by the court was to exclude - it from the consideration of the jury, it was erroneous.

The judgment is reversed, and the cause remanded.